It will be seen that on every point about which nothing was known to the police, the two “confessions” are absolutely at variance. On the points known to the police, they absolutely agree except that Harding (rightly) makes Ross speak to another girl at the door before he speaks to Gladys Wain. This the police knew from Stanley’s statement, though it is not in Ross’s written statement. Further comment on these suggestive facts seems unnecessary.
WAS THERE “INSIDE” KNOWLEDGE?
How, it may be asked, could Ivy Matthews and Harding become possessed of the information the police had? That question is not difficult to answer. It will be shown later that Ivy Matthews was driving around with the police on January 9, assisting them to get evidence in the case, and that she, on her part, was trying to get it manufactured. If that is so (and a sworn declaration to that effect has gone unchallenged) then she was not likely to lack any information that the police thought it might be useful to them for her to have. It has been stated in the Press that the police employed Chinese spies to see if evidence could be got against any of the Chinese in the neighbourhood. The statement, though it ill accords with Piggott’s evidence that “we had the case well in hand” on December 31, has not been denied. If Chinese spies were called in to assist in the unravelling of the crime—and that course of action may have been quite justifiable—the detectives are not likely to have cried “non tali auxilio” when Matthews volunteered her services.
As to Sydney Harding, the source of his knowledge can be guessed if not inferred. Harding was a criminal with a record, like one of the Arbitration Court disputes, extending beyond the limits of one State. He was “wanted” in Sydney, when he favoured Melbourne with his society on January 4. At that time, Detective Walsh, of Sydney, was doing duty in Melbourne as an exchange officer. He was one of the detectives engaged on the Ross case and was present at the arrest. On Sunday, January 22, according to statements since made to Ross’s advisers, Harding sent for Walsh, whom he knew, and Walsh visited him at the gaol and had a long interview with him. On Monday, January 23, Ross made the “confession” to Harding, and that night Harding again sent for Walsh, as is admitted, and recounted the confession to the Governor in the presence of the detective.
Neither of these facts—that Ivy Matthews was acting as assistant detective on January 9, and that Detective Walsh had visited Harding in the gaol by invitation on January 22—was known at the trial. Had they been so, they would have provided excellent material for cross-examination, and would have given the jury something to consider which was never present to their minds.
It has been suggested that it would be a dreadful thing if the police had prompted Harding in this matter. It certainly would have been a dreadful thing if they had prompted him or anybody else to manufacture a confession, and nobody suggests for a moment that they would do, or did do, such a thing. But believing Ross guilty, as they no doubt did believe him guilty, and yet not having sufficient evidence to prove it, they would have been merely following a commonplace practice if they had employed Harding to endeavour to get a confession of his guilt. In one of the daily papers, Mr. Brennan was represented as having said in argument before the Appeal Court that it would have been a very dreadful thing for the police so to employ Harding. In fact, he said the exact opposite. But Harding was a very dangerous agent to employ on this task. Some at least of the Detective Force knew that he had volunteered for this kind of duty on a former occasion, and that his services had been declined. There would have been nothing wrong from the point of view of anyone engaged in unravelling a mysterious crime for a detective to have said: “We know this, and that, and the other; see if you can get from him information on the points we know nothing about.” And whether that is, or is not, what they did, the simple fact remains that if they had done so, they would have told him the things in which the Harding and Matthews “confessions” agree, and would have assigned to him the duty of filling in the gaps which are filled in by Harding and Matthews in a manner absolutely at variance the one with the other.
AN EXPERT ON HAIR.
Nothing could point more strongly to the guilt of Ross than satisfactory proof that hairs from the head of the murdered girl were found on a blanket in his private room. It becomes necessary, therefore, to examine Mr. Price’s evidence, to see whether it does establish this important fact. It will be seen by a reference to that evidence, that Mr. Price uses very guarded language. He “came to a conclusion” about certain things and he “formed the conclusion” about others, but he at no time definitely stated that the hairs taken from the blankets were from the same head as the hairs in the envelope. None the less, the fact cannot be blinked that the tendency of Mr. Price’s evidence was in that direction, or that in that direction lay the bent of his mind.
A word of caution as to expert evidence generally may, therefore, appropriately be given, and if a quotation from “Taylor on Evidence” is selected, no one who knows anything of the subject, will question the weight of the authority.
“Perhaps the testimony which least deserves credit with a jury,” says the author, “is that of skilled witnesses. These gentlemen are usually required to speak, not to facts, but to opinions; and when this is the case it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that even when conscientiously disposed, they are incapable of forming an independent opinion. Being zealous partisans, their Belief becomes synonymous with Faith as defined by the Apostle, and it too often is but ‘the substance of things hoped for, the evidence of things not seen.’ To adopt the language of Lord Campbell, ‘skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.’”
The first criticism of Mr. Price’s evidence is that he is not an expert on the subject, and indeed he made no pretence of being one. He knew nothing about the subject beforehand, and his experiments and reading were principally done after the event. For all he knows to the contrary, the pith of all hairs may be identical. He made one admission in the course of his cross-examination which absolutely destroyed the probative force of his evidence. In his post-factum observations he had examined hairs from several auburn heads, and he admitted that he had found some hair as like Alma Tirtschke’s as the hairs from the blankets. The “proof,” therefore, resulting from Mr. Price’s evidence may be reduced to an elementary syllogism as follows:—
- This hair is like Alma’s.
- All hair like Alma’s is not Alma’s.
- Therefore, this hair may (or may not) be Alma’s.
It was said earlier that Mr. Price might, on the facts he deposed to, have been a powerful witness for the defence. Let us show how this is so. Suppose, having deposed to the examination of the two sets of hairs, exactly as given previously, he had been examined by Counsel for the Defence, and had answered in the following way, would not his answers have been fully justified by what he had already stated?:—
Defendant’s Counsel—Having examined the two sets of hair, are you of opinion they did not come from the same head?—I am.
Can you give reasons for your opinion?—I can, many.
What are they?—In the first place, the hair was not of the same average length, that from the head of the girl being, on the average, six inches longer than that from the blanket. In the next place, the hair from the blanket was of a light auburn colour, while the hair from the head was an auburn colour tending to red or a deep red. What is more important, the hairs from the two sets were not of the same diameter, and I cannot imagine why hair from the same head should differ in diameter. In the next place, in hair I have examined since, the frontal portion was quite red, and that from the back of the head quite dark, suggesting that where the hair is exposed, it lightens in colour, while in this case the hairs, which must have come from the back of the head, were actually lighter than those which came from nearer the front. In the next place, I found in my investigations hairs which were quite as like Alma Tirtschke’s as the hairs on the blanket, and though this does not prove that they were not Alma’s hairs, it prevents, by an elementary rule in scientific investigations, any deduction that they were. Lastly, it appears incredible to me, that if a girl of 13 were lying on a blanket for three hours she should lose 27 hairs—or rather that 27 of her hairs should still be remaining on the blankets at the expiration of a fortnight, during which the blankets had been removed to a distant suburb, and constantly handled.
A MISSING LINK.
There are other features about this hair examination which call for comment. When a man is on trial for his life, he himself, his counsel, and indeed the public generally, are entitled to demand that every link in the chain connecting him with the murder shall be found in its place. It was objected on the appeal that a link was missing in the case of the blankets, since it was not shown where they were during the night preceding their handing over to the analyst. One of the learned judges in the High Court asked whether this “sinister suggestion” had been put to the detectives. With the greatest respect, it is not, in the first place, a sinister suggestion, but an elementary requirement in proof; and in the second place, it is no part of the duty of a defending counsel either to fill up gaps in the Crown evidence, or to give the Crown witnesses a lead by which they may do it. But a blow would be struck at the whole administration of justice, if once the principle were admitted, that evidence, just because it is police evidence, is not to be subjected to the ordinary tests. The principle admitted, it would soon come to be known and traded upon, and the result would be the lowering of the whole morale of the Detective Force. The logical outcome would be the transfer of the seat of justice from the Law Courts to the Detective Office. It is the knowledge that their evidence will have to run the gauntlet of the fiercest criticism and examination which the skill of the bar can bring to bear on it which helps to keep the members of the Detective Force up to their present high standard. On such a question as spiritualistic manifestations, the sceptics require the exclusion of every opportunity for fraud, even when the high priest is a man of the reputation of Sir Conan Doyle; and a prisoner under the shadow of the gallows, who speaks through his counsel, is entitled to demand the exclusion of every possibility of fraud, even when a man of the standing of Detective Piggott is in charge.
It is almost impossible to believe, apart altogether from the question of Ross’s guilt, or the question of the supposed identity of the hairs, as deposed to by Mr. Price, that the hairs on the blankets could have been Alma Tirtschke’s. As was mentioned during the legal argument, golden hairs do not shine out conspicuously on a reddish brown blanket when they are well imbedded in the fabric. Yet when Detective Piggott picked up this reddish brown blanket in the darkness of a vestibule, a fortnight after it had left the wine saloon, after it had been used for packing pictures on the day of the removal, after it had been put out to air on a line, after it had been in use for a fortnight at Maidstone—all of which was sworn to—his quick eye immediately detected “the sheen of golden hairs” on it. They must, therefore, have been lying loosely on it. It would surely have been fair that he and his men should have immediately started to pick them off—and in the presence and with the knowledge of Ross. It was hardly in accordance with the fairness with which the case was investigated throughout, to defer the picking off until the blankets had been placed, on the following day, over the screen in the Government Analyst’s room. Nothing was known by Ross of the discovery of the hairs until the evidence was given, a fortnight later, at the inquest. It is also remarkable that Piggott, who, according to his own testimony, had the case against Ross “well in hand” on December 31, never even went into the cubicle on that day to see if it would reveal anything, although he knew the place was to be vacated and dismantled on that very evening.
On the trial, evidence for the defence was given that Mrs. Tom Ross and her sister, Miss Alice Ballantyne, had gone into the cubicle on the Wednesday before the murder, and had “done” their hair in it, each letting her hair down and combing it. Alice Ballantyne’s hair bore the strongest resemblance to Alma Tirtschke’s, and leaving out the improbability of the hairs remaining on the blanket for a fortnight, it was far more likely that 27 hairs would come out under the operation of combing than that they would come out from a girl simply lying on the blanket. Something might have been said on this point by Ross had he been apprised at the time of “the sheen of golden hairs.”
It was not mere thoughtlessness that allowed the examination of the blankets to be delayed for a fortnight, for, if Ross’s supplementary statement of January 5 is looked at, it will be seen that he said on that day, in answer to a question, “I did have two blankets in the saloon. They were used as a rug or cover to lie down in the afternoons.” Thus put on his guard, one would have thought that, if Ross were a guilty man, he would have seen that the blankets did not rise up a week later to confront him. And one certainly would have thought that the detectives, if they had the case against Ross “well in hand” on the 31st, would have seen the desirability, at least on January 5, of sending out, while they had Ross temporarily in custody, and getting possession of the blankets.
There was still another fatal weakness in the “reddish brown blanket” as a link in the chain connecting Ross with the murder. When Ivy Matthews was shown this blanket, she decisively tossed it aside as not having been in the saloon in her time. Either it was, or it was not, in the saloon on December 30. If it was not, the hairs on it could not have come from Alma Tirtschke’s head. If it was, then how comes it that not one spot of blood was found on it, when, according to the Harding “confession,” the place was like a shambles, and, according to the medical evidence, there would be much bleeding? It may be suggested that this blanket was under the girl’s head, and another blanket was under her body, and received the blood stains. If so, it would, if discovered, have been the most damaging piece of evidence against Ross, and its disposal must have been a matter of the gravest concern to him. Yet although he is supposed to have given to Harding the most minute details of unimportant matters, together with a complete account of how he disposed of the girl’s dress, he never said one word about this blanket, or its disposition!
THE GIRL’S ATTIRE.
Another of the facts urged as showing that Ross murdered the girl was the exact description he gave of her clothing on the morning following the girl’s disappearance. On being asked by Piggott how the girl was dressed, he described her dress and her hat with the college band on it, said in answer to a question that she had on a white blouse, and, on being asked “what else?” said: “Well, she had black stockings, and boots or shoes—I think boots.” (In the signed statement the corresponding passage is “she wore dark stockings and boots, or she may have had shoes on.”) Again, on being asked about her hair, he said it was golden coloured and hung down her back.
The answer to the suggestion that that was a minute description for a man to give of a girl’s dress is that, in the first place, it was given mainly in answer to questions, and it ought not to be difficult for a man to visualise the girl’s dress after a lapse of 18 hours, especially as she was dressed in conventional school-girl style. (Her dress was quite as accurately described by a hotel porter who saw her walking up Little Collins Street.) Harding’s “confession” credits Ross with saying that he told the police she wore boots, and with suggesting that this was an erroneous description designed to mislead. The evidence does not bear Harding out, and the idea that in any case the trifling discrepancy was designed to deceive is ridiculous. And while Harding suggests that Ross was purposely inaccurate in order to deceive, the Crown Prosecutor used Ross’s accurate description to show that he was accurate not merely because he had seen the girl in the Arcade, but because he had taken her clothing off. Since the question of the disposal of the clothing was supposed to have been raised by Harding and dealt with by Ross, it is curious, by the way, that nothing was said to Harding of the underclothing, or of the distinguishing hat, or of the parcel of meat, for these, too, had to be disposed of. But this is only another proof that Harding put nothing into Ross’s mouth which was likely to be falsified by independent testimony.
Here, again, this very matter of hesitation about the boots or shoes tells entirely in Ross’s favour. Either he gave a description to the best of his ability, or he gave a description purposely designed to deceive. The latter alternative may be dismissed at once, because the description was so nearly accurate that it is absurd to suppose it was meant to mislead. There remains, then, the alternative that he described the dress to the best of his ability. A man describing the appearance of a conventionally-dressed school-girl has not room to go far astray. The one thing he would not be likely to remember, or to carry in the mind’s eye, was whether she had on boots or shoes—especially if her stockings were black. But if Ross had stripped the body, that is the one thing that he would have been clear about, for by the hypothesis he took the boots off, and he could hardly have forgotten the gruesome task of unlacing them.
THE LIGHT IN THE SALOON.
There is one piece of evidence which causes some difficulty in that it suggests that someone was in Ross’s saloon after midnight. It is the evidence of the two Italians who swore that there was a light in the saloon at 10 minutes to 1. There does not appear to be much room for mistake in this evidence, for the Italians said they talked with one another about the unwonted circumstance of the light. There does not appear to be any reason to doubt their honesty, even though they have since shared in the reward. During argument before the Appeal Courts, it was suggested as a possibility that other persons might have gained access to the saloon. It was proved in evidence by Mr. Clarke, the Manager of the Arcade, that the door of the saloon nearer Bourke Street could be opened by inserting a knife or piece of tin between the bolts of the Yale lock and the part into which it fits, the lock being loose and the door ill-fitting. Apart from Mr. Clarke’s unchallenged testimony on this point, the fact may be accepted as being beyond controversy, for Mr. Clarke, on the eve of the trial, opened the door in the way mentioned without the slightest difficulty, in the presence of the counsel and solicitors for Ross.
This being the fact about the door, it was not altogether improbable that it would be known to some patrons of the wine saloon who were tenants of the Arcade. The suggestion made in the Appeal Courts was that other persons with a dead body on their hands, which it was urgent they should dispose of, might have bethought themselves of the disused cellars in the wine cafe as a possible hiding place. This would be the more probable by reason of the fact that it was known that the following day would be the last on which the wine saloon would be open, the license expiring with the year. It was known in fact that the police questioned, and detained for a time, at least one occupier of a room in the Arcade whose reputation was far from good. In any event, there is strong evidence that Ross knew nothing about the light in the saloon if it was, in fact, there. On the day of his arrest, he was interrogated for the third time by Piggott. Piggott said: “It will be proved that a light was burning in your wine shop on the early morning of the 31st.” Ross replied promptly: “That is a lie—a deliberate lie.” Piggott said: “It will be proved that a little girl was seen in your wine shop on the afternoon of the 30th.” Ross said: “That’s a lie.” “It will be proved that she had a glass in front of her and was sitting in the room,” continued Piggott, and again Ross answered: “That’s a lie.” And being asked if he had any explanation to give, he added: “You have got nothing over me.”
If that light had been in the wine saloon at 1 o’clock with Ross’s knowledge, he must have known, or at least have thought, that the fact might be proved by a dozen independent and reputable witnesses. If it had been a fact he would have been ready with an explanation, such as that they were dismantling the premises. But his emphatic, if not very polite, answer was: “That’s a lie.” The same remark applies to the answers in regard to the little girl being seen in the saloon with the glass in front of her. If she had been there she would, as has already been said, have been seen probably by a hundred people. But Ross’s answer to the suggestion that she was there was to brand it as a lie. And Matthews and Maddox were the only persons called to prove it was not a lie. That, however, is not the present point. We are dealing with the light in the saloon.
Since the trial a further fact has been disclosed in connection with this question which lends a great deal of support to the theory put forward by counsel on the appeals. A Sydney paper, still in its youth and advertising stage, has degraded journalism in connection with the Ross case in a way that is happily rare in the annals of the newspaper world. As Ross lay in the condemned cell, it gloated over his impending doom in a manner that showed that it did not appreciate the cowardice of kicking a man, even a criminal, when he is down. But it apparently had plenty of money to spend for the work of pushing its circulation among those who like that kind of literature. Its Melbourne representative did undoubtedly get well into the secrets connected with the working up of the case against Ross. In its issue of March 25, it had an article dealing with the preparation of the case which was clearly inspired. One paragraph referred to “another piece of unrecorded history,” as follows:
“There is a card school that assembles frequently at the Arcade, or did prior to the trial. On the night of December 30, the players dispersed shortly before midnight. They went out of the Arcade by way of Little Collins Street. Passing the wine shop, they noticed that it was lit up. But this they also noticed—that Room 33 also showed a light. The tenant was not in the room. He had lent it to a friend who was entertaining there a young woman, the daughter of a former officer of police. Ross, too, had seen the light. He must have noticed it at intervals during the evening, and watched it with despairing hope that its users would go away instead of staying on, hour after hour, spoiling his plans. At last it appeared as though the room was going to be occupied all night. Some new way had to be found. It was then that he thought of Gun Alley....”
Ross’s thoughts, it will be seen, are here set down as though the writer were recording some plain matter of fact. The suggestion is that Ross had intended putting the body in this room, but was thwarted by the unfortunate circumstance that someone, not the tenant, had got the use of it for the night. The allegation about the intention of Ross to put the body in Room 33 is taken bodily out of the supposed Matthews confession. It has no other foundation, in fact. How closely the correspondent was in touch with Ivy Matthews is shown by the fact that another number of the same paper gave the story of her life. But again we are face to face with the fact that Harding, to whom Ross is supposed to have given such minute details of the disposition of the body, has not a word to say about this unexpected obstacle. A murderer and a ravisher who was confessing his double crime was hardly likely to have boggled at admitting, if such were the fact, that he contemplated disposing of the body by putting it in another man’s room. But at least, since he gave such details of his plan for disposing of the body, and his execution of them, it is curious that he said nothing about the difficulty which the light in Room 33 created.
Again there is the remarkable circumstance that not one of the card school was produced on the trial to say that in fact there was a light in the saloon at midnight. But whatever may be the facts about a light at 10 minutes to 1, it is certain that if there was a light in the saloon at midnight, Ross was not responsible for it. If the guilt or innocence of Ross depends upon the question of whether he was, or was not, in the saloon at midnight, it may be taken to be established, as clearly and definitely as human testimony can establish any fact, that Ross is innocent. Those who heard the evidence of Patterson, Studd, and Bradley, (to be mentioned later) as to Ross going home on the last tram to Maidstone, the suburb out from Footscray where Ross lived, and had the advantage of private consultations with these witnesses, cannot entertain the slightest doubt that Ross was on the tram. Conceivably, his brother and mother, as deeply interested witnesses, were lying as to what took place after he got home, though they never wavered, and were never shaken in the slightest degree in their testimony, but as to the honesty and accuracy of the three disinterested witnesses named there can be no doubt whatever. But, even if the confessions are relied on, it should be noted that both negative the suggestion that Ross was in the saloon at midnight.
Not a word about the light in room 33 or of the observations of the card school came out on the trial. Of course, there may be no truth in the story. But, true or not, no questions concerning either were put to Ross by the detectives which would have allowed these matters to get out on the trial. This is not meant as adverse criticism of the conduct of the case. It merely illustrates what has been said earlier how events so shaped themselves as to cast all the light on Ross, and leave others, who at one time or another were suspected, entirely in the shadow.
The detectives explain the light in the one room by the theory that a stranger to the room had been given the use of it for the night for an immoral purpose; they explain the light in Ross’s room, if the newspaper account is true, by the theory that he is engaged disposing of a dead body. But if the jury had known that all night a light was burning, not only in the saloon, but in a room opposite to it, they might not have been so easily satisfied about either theory, as it is suggested the detectives were.
No insinuation is made against the fairness with which the detectives presented the case against Ross. In particular, Piggott’s account of the conversations with Ross give, with great frankness, Ross’s answers, when it would have been perfectly easy for the detective, had he desired to be unfair, to minimise the emphasis Ross put upon his denials. There are two passages in Taylor’s great work on “Evidence,” however, which are peculiarly applicable to this case. One deals with the caution necessary in considering all police evidence.
“With respect to policemen, constables, and others employed in the detection of crime,” says the learned author, “their testimony against a prisoner should usually be watched with care, not because they intentionally pervert the truth, but because their professional zeal, fed as it is by an habitual intercourse with the vicious, and by the frequent contemplation of human nature in its most revolting form, almost necessarily leads them to ascribe actions to the worst motives, and to give a colouring of guilt to facts and conversations which are, perhaps, in themselves, consistent with perfect rectitude. ‘That all men are guilty till they are proved to be innocent’ is naturally the creed of the police, but it is a creed which finds no sanction in a court or justice.”
The other passage deals with the dangers which have necessarily to be guarded against in any case depending on circumstantial evidence. Says the learned author:—
“It must be remembered that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first, they are apt to consider his acquittal as a tacit reflection on their discrimination or skill, and, with something like the feeling of a keen sportsman, they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted, innocent words misunderstood, and as men readily believe what they anxiously desire, facts the most harmless may be construed into strong confirmation of preconceived opinions. It is not here asserted that this is frequently the case, nor is it intended to disparage the police. The feelings by which they are actuated are common to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth.”
Piggott himself admitted that the press were giving them “a pretty rough time” about their failure to effect an arrest. How “rough” it was may be gauged from one editorial in “The Argus” about three days before Ross’s arrest, which said: “As each day passes the grievous disappointment of the public at the failure of the police to track down the murderer of the child, Alma Tirtschke, grows more profound.... Even among citizens less given to displays of anger the sense of disgust is acute. The detectives and police force of Melbourne are on their trial, and no matter how exacting they may find the ordeal they must realise that the public will not tolerate failure on their part.” Being thus on their trial, with their reputation at stake, they had a tremendous incentive to try and sheet the crime home.
POINTS THE JURY MISSED.
But even with what they had before them, the mystery still remains how any jury of reasonable men, appreciating the evidence properly, could say that there was no doubt as to Ross’s guilt. Reviewing it as dispassionately as one may, and without comparing it with the evidence for the defence, to be adverted to in a moment, the balance of probability, to say the very least, dips on the side of his innocence. The inherent weakness of the Crown case would remain though not one witness were called for the defence. The unfortunate thing for Ross was that the jury never was told that there was any weakness or inconsistency in the Crown evidence. On the contrary, the evidence was left to them, and, indeed, put to them, as though there was a cumulative force about it. At one stage they were told by the learned Judge that “the accused in his evidence denies what is attributed to him by Brophy, denies the statements of Ivy Matthews incriminating him, denies the statements of Olive Maddox incriminating him, denies Harding’s and Dunstan’s evidence, and denies also the evidence of Upton.” The inherent improbability of the supposed admission to Brophy, or the inherent probability of Ross’s account of it, was never suggested; the conflict between the Matthews and the Harding confessions was never hinted at; the fact that Dunstan had read Harding’s evidence, as given at the Morgue, and had not reported what he is supposed to have heard until after he had read it, was never adverted to; and the fact that Olive Maddox’s evidence could not be true that the girl was awake in the beaded room at 5 o’clock if Harding’s “confession” was true that she was asleep in the cubicle at that time was never referred to.
It was never pointed out to the jury that Harding and Matthews were deposing only to confessions, and that, while it is possible for a man to say things that are verbally inconsistent, it is not possible for him to do things that are actually inconsistent, and that what the jury had to determine was not what Ross said, but what he did.
They were never asked to consider why he should have made two different confessions to two different people, or why he should have made a confession at all. They were never told that, in dealing with an alleged confession, they must approach the consideration of it in a manner entirely different from that in which they would approach evidence purporting to deal with substantive facts. Indeed, in the passage above quoted, Upton’s evidence of supposed facts is put in exactly the same category as Matthews’s and Harding’s evidence of supposed confessions. The learned lawyer, Sir Michael Foster, author of an historic legal work, may have realised that confessional evidence “is not, in the ordinary course of things, to be disproved by the sort of negative evidence by which the proof of plain facts may be, and often is, confronted,” but a Melbourne common jury was hardly likely to realise that truth by the light of nature. Mr. Justice Cave, in delivering the judgment of a very full Bench in a trumpery case of embezzlement not so very long ago, said: “I would add that, for my part, I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory, but, when it is not, the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession—a desire which vanishes as soon as he appears in a court of justice.” How aptly those words applied to this case!
They were never warned that they could take the confessions, if they were satisfied that they were made, and accept as much of them, or either of them, as they chose, but that, if they rejected any portion of them, they could not fill in the gap by conjecture if there was no other evidence on the point.
They were never reminded of the difficulties of cross-examining two persons who purport to depose to a confession, for, whatever inconsistency with the facts is pointed out, the witness merely replies, “That may be so; I know nothing but what he told me.”
They were told that Ellis’s evidence was important “because it was so contradictory of the evidence of some of the witnesses for the defence,” but they were never reminded that, if Ellis’s evidence was true, they would have to reject a great portion of the supposed confessions to Matthews and Harding.
It is extremely likely that, in dealing with Matthews’s and Harding’s evidence, they would reason that “Harding says this” and “Matthews says this,” and then draw inferences unfavourable to Ross from the supposed cumulative effects of the two sets of evidence; and extremely unlikely that they would reason that “Harding says that Ross said this,” and “Matthews says that Ross said that,” and then go on to draw inferences favourable to Ross from the fact that they make him say totally inconsistent things. Yet this is what they should have done. They probably have not yet realised that they were dealing with a case absolutely without parallel in the annals of British criminal jurisprudence, in which they were invited to hang a man on contradictory confessions, which he is alleged, by thoroughly disreputable witnesses, to have made, which on his oath he denied having made, for the making of which no reason could be assigned, and which were so seriously in conflict as to suggest that they were never made.
In the nature of things they were likely to put Harding, Matthews, Maddox, Dunstan, Ellis, and the Italians on one side, and Ross and his witnesses on the other, and were not likely to recall that the one set was a contradictory jumble, and the other set a solid mass of unshaken testimony, much of it disinterested, directed to establishing certain definite things.
To the writer, these all seem matters that it was of the first importance the jury should have had in mind. True it is, that many of them were touched upon in Mr. Maxwell’s eloquent address for the defence; but the last words, and the weightiest words, must always come from the presiding judge. It is also true that before two appeal courts it was urged that these omissions constituted a ground for saying that the summing-up fell short of what was required, and that both courts rejected the contention. But that does not preclude the respectful comment that the jury, overlooking them, may have approached the evidence from the wrong standpoint. That they did, for some reason, approach it from the wrong standpoint seems established by their verdict.